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Oct. 28 --Chief Judge Randall R. Rader of the U.S. Court
of Appeals for the Federal Circuit told a large audience of intellectual
property stakeholders that the court's inability to issue jurisprudence in its
en banc review of the CLS Bank v. Alice case was “the greatest failure
in my judicial career.”

However, Rader, in an Oct. 25 interview with
Executive Director Q. Todd Dickinson of the American Intellectual Property Law
Association at AIPLA's annual meeting in Washington, D.C., said that the
“opportunity is still open” to reach a majority in other cases before the court
on patent eligibility, especially considering that three recently added
judges--Richard G. Taranto, Raymond T. Chen and Todd M. Hughes--did not
participate in the CLS Bank decision.

A petition for writ of certiorari
has been filed and friends of the court supporting review have commented . A
response is due Nov. 6.

Nevetheless, Rader said, “I think we will move
with diligence to correct the situation.”

Patent Litigation Reform

The chief judge also suggested that the Federal Circuit may have more to say
on an issue on which the Supreme Court has granted cert--the standards for
which a district court can determine an exceptional patent case under 35 U.S.C.
§285 for the purpose of awarding attorneys' fees to the prevailing party.
Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., No. 12-1163, and
Octane Fitness, LLC v. Icon Health & Fitness, Inc., No. 12-1184
(U.S., review granted Oct. 1, 2013) .

“We may end up ahead of
them,” Rader said, pointing to several cases pending. “I think our court will
be clarifying [the standards].”

Dickinson's interview covered a wide
variety of topics otherwise, but he often returned to what was the hottest
topic at the AIPLA meeting this year--Rep. Robert W. Goodlatte (R-Va.)'s
introduction of the Innovation Act (H.R. 3309), primarily aimed at curbing
patent infringement litigation abuses, on Oct. 23 . In fact, a “loser pays”
provision is included in the bill and the appeals court--as it did before
passage of the America Invents Act--could get ahead of Congress on the issue as
well.

Rader was particularly critical, though, of H.R. 3309's attempts
to control district courts' discovery procedures and rules in Section 6 on
“Procedures and Practices to Implement and Recommendations to the Judicial
Conference.”

“I don't think there's any way to set a rule for something
so case-specific as discovery,” he said.

Rader has been a champion, in
his support of the patent judge pilot program and through the Federal Circuit
Advisory Council , of promoting suggestions to make patent infringement
litigation less expensive.

To put responsibility for making up those
rules in Congress, though, he said, “strikes at the heart of judicial
independence.”

Something Wrong With Picture

Goodlatte's bill
creates more opportunities--expanding on the options available under the
AIA--for challenges to issued patents at the Patent and Trademark Office, and
that also caught Rader's attention.

First, he noted that there are
“things to sort out” in terms of vague or disputed language in the AIA, and the
Federal Circuit will be handling a lot of appeals from the Patent Trial and
Appeal Board in the next couple of years. But he was more concerned with a
“tension throughout the system.”

On one side of the PTO, he said, “You
have 7,000 people giving birth to [intellectual] property rights,” while in the
PTAB, there will soon be as many as 300 administrative patent judges “acting as
death squads, killing property rights.”

Finally, Dickinson asked whether
Rader had any comment on the recent suggestion by Seventh Circuit Chief Judge
Diane P. Wood that the time is ripe to allow patent infringement cases to be
appealed to regional circuit courts as well as the Federal Circuit.

“We
tried that for about 100 years and it didn't work,” Rader said, promising that
he will respond to Wood in the near future.

To contact the
reporter on this story: Tony Dutra in Washington at adutra@bna.com

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